The University of Tennessee, Knoxville

Tennessee County Municipal Advisory Service

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Fewer Than Five Employees

Reference Number: MTAS-954
Tennessee Code Annotated
Reviewed Date: July 28, 2017
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The FLSA provides a “complete overtime exemption for any employee of a public agency engaged in law enforcement or fire protection if that agency employs fewer than five (5) employees during the workweek.” 29 U.S.C. § 213(b)(20); 29 C.F.R. § 553.200. It does not, however, exempt the public agency from the minimum wage requirements of the law.

“In determining the number of employees in law enforcement and fire protection, each group is considered separately. For example, if an agency has fewer than five fire protection employees but five or more employees in law enforcement activities, it may claim an exemption for the fire protection employees but not for the law enforcement employees. There is no distinction made between full-time and part-time employees and no distinction between employees on duty and those on leave. Volunteers are not, however, counted.” 29 C.F.R. § 553.200(b).

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